Karnataka High Court Strikes Down 100% Reservation For Women In Recruitment To Cadre Of 'Nursing Officers' In Military

The Karnataka High Court has struck down the expression "if woman" found in Section 6 of the Indian Military Nursing Services Ordinance, 1943 as unconstitutional. By this expression, 100 percent recruitment was reserved for women in the cadre of 'nursing officers'.

A Single judge bench of Justice Ananth Ramanath Hegde sitting at Dharwad partly allowed the plea filed by Sanjay M Peerapur and said “Women are justifiably considered to be a separate class under the Constitution. However, it does not mean that there can be hundred percent reservations in employment for women to the exclusion of all others when the classification is solely based on the sex without having any rational nexus to the object sought to be achieved.

The Court held that the law which provided exclusive reservations without any intelligible differentia which had a nexus to the object sought to be achieved, violated the Constitutional guarantee under Article 14 and Article 16 (2) of the Constitution of India and would not fall within the ambit of Article 15(3).

The petitioners had sought to strike down Section 6 of the Indian Military Nursing Services Ordinance, 1943.

Section 6 reads thus: Eligibility for appointment -(1) Any citizen of India, if a woman and above the age of 21, shall be eligible for appointment as an officer in the Indian Military Nursing Services, and, if she satisfies the prescribed conditions, may be appointed thereto in the manner laid down in section 5.

It was contended that in a matter of public employment, Article 15(3) had no role to play and employment under the State was entirely governed by Article 16 read with Article 14 of the Constitution of India.

Further, it was argued that the classification based on gender in Section 6 of the Ordinance, 1943 did not pass the twin test of reasonable classification and rational nexus between the differentia and the object sought to be achieved.

Petitioners argued that Section 6 of the Ordinance, 1943 was a temporary measure to overcome the emergency prevailing then, and the same had no relevance in today's context and did not conform to part III of the Constitution of India.

The respondents opposed the plea stating that exclusive reservation for women was provided to fill up the contingent temporary vacancy that may arise when male nursing officers working in hospitals (who are recruited under a separate recruitment process), would be deployed to attend to the soldiers during the war (during the 1940s).

Moreover, it was submitted that an exclusive reservation was also provided for men to be employed as nursing officers under a separate recruitment process, and as such, in practice there was no discrimination based on gender, and equality was ensured.

Further, it was said that the Ordinance, 1943 would be protected under Article 33 of the Constitution of India, and that in a matter concerning employees in the armed forces, there can be restriction or abrogation of any of the rights under Part III of the Constitution of India.

It was added that petitioners had not questioned the law providing hundred per cent reservations for men to the similar post of nursing officers.

The bench noted that Article 14 of the Constitution of India provided for equality before the law and equal protection of laws within India. Among other Articles in the Constitution, Articles 15 and 16, (relevant for discussion) are the enabling provisions to achieve the goal set out in Article 14, it observed.

It was further noted that the segregation of unequals to provide protection or accommodation or to confer some advantage on the marginalised section of society was not only desirable but also a constitutional imperative. The bench cautioned that such an obligation had certain limitations as the classification must pass the well-established twin test.

It added, “Under Article 15(3) of the Constitution of India, women and children are indeed treated as a separate class and the State is enabled under Article 15(3) of the Constitution of India to make special provisions for the benefit of women and children.”

Referring to the Apex court judgment in the case of Indra Sawhney vs Union of India – AIR 1993 SC 477, the court said that it was evident that in a matter relating to public employment, Article 16(2) governs the field, and Article 15(3) cannot override Article 16(2).

It also noted that there may be circumstances where the very nature or place of work, or the persons for whom the work is done required only women to be employed, such as while recruiting employees in girls' or ladies' hostels, or any institution exclusively meant for women.

The court further said that in the case on hand, no such justification was claimed and that nursing officers appointed under Ordinance 1943, were not required to discharge the duty in a hospital exclusively meant for women and it was not anyone's case that the work is such that it can be done by only women and not by men.

Rejecting the contention that similar laws were available to men, the Court said: “There is no guarantee that the recruitment will take place simultaneously. Not going for recruitment under one Ordinance or law, when the recruitment takes place under another Ordinance or law, and if a particular sex is disqualified to apply for the post, then it results in denial of an equal opportunity in employment guaranteed under Article 16 of the Constitution.”

It added, “Thus, the contention that the violation complained in view of exclusive reservation for women in Ordinance, 1943 is compensated by exclusive reservations provided for men in another law, in practice, will not ensure equality under Article 14 as there is no mandate that the recruitments should take place simultaneously for both men and women.”

Court noted that the impugned ordinance was a colonial law till it was adopted post-independence through the mechanism provided under the Constitution and in 1943, on account of the Second World War, there was an urgent need to recruit nurses as male nursing officers were deployed on the battlefield.

Accordingly, it observed that the emergency that prevailed in 1943 was no longer there and eight decades had elapsed since then and no grounds were made out to justify 100% reservation for women since there was no evidence that women were reluctant to join military establishments as nurses akin to the 1940s.

It added “The underlying philosophy of reservation is to accommodate and include, but not to exclude. However, if such an accommodation which is termed as a reservation, becomes exclusive and hundred percent, without justifiable grounds, then such exclusive reservation ceases to be a reservation in its true sense and it amounts to an exclusion which is not envisaged under the Constitution at all.”

Court observed that Article 33 of the Constitution of India, empowers Parliament to make special provisions affecting rights conferred under Part–III and that such power was given only to the Parliament and none other.

It noted that the ordinance in question was not promulgated by Parliament but by the British Crown and adopted under Article 372(2) of the Constitution of India, which could not be equated with the law enacted by the Parliament under Article 33 of the Constitution of India.”

Accordingly, in holding that exclusive reservation conferred on women while recruiting "nursing officers" under Ordinance, 1943 violates the rights guaranteed under Articles 14, 16(2), and 21 of the Constitution of India the Court held that to ensure equity it would protect the appointments which had taken place over the eight decades for which the law was in force since they had not been challenged either.

"This Court is of the view that notwithstanding that provision is held to be ultra-vires, all appointments made hitherto under Ordinance, 1943 and consequences flowing from such appointments are required to be saved and hence saved,” it concluded.

Appearance: Advocate Mallikarjunaswami Hiremath for Petitioners.

Advocate M.B. Kanvi for R1, R2

Advocate Shivarudra for R3, R4.

Citation No: 2024 LiveLaw (Kar) 14

Case Title: Sanjay M Peerapur & Another & Union of India & Others.

Case No: Writ Petition No 62966 OF 2011